On The Rules Of Sentencing Evidence

It is a topic in recent years to regulate judge’s discretion of sentence with separate rules of sentencing evidence which is a sign of growing attention to sentencing activities and a result of standardization of sentence course as well as the reform of sentencing proceedings. The rules of sentencing evidence have rich content including the object of proof, the qualification of proof, the allocation of burden of proof, the standards of proof and the proving proceedings. This article focuses on the core question of rules of sentencing evidence that the proving of sentencing facts through two major contents in rules of sentencing facts:allocation of burden of proof, and standards of proof. This article cites experience and rules from other jurisdictions and digs into judicial practice in order to make suggestions to the sentencing proceeding reform, since there is no developed theory about proof of sentencing facts, legislature and judicial law in China.Part 1 is an overview of sentencing facts from three aspects:independence, classification and common legislature of sentencing facts. In the course of defining what is sentencing facts, it is clear that the difference between conviction facts and sentencing facts, the independence of sentencing facts as well as the meaning of such independence. This article suggests a new classification in the purpose of boasting study on burden of proof and standards of proof on the basis of present classification of sentencing facts and provides an overview of legal sentencing facts.Part 2 is a discussion focusing on allocation of burden of proof in sentencing. This article suggests a theory about multivariate allocation rules on the basis of observation to both common law and civil law system. The allocation is based on sujectives:prosecutors bear the burdens on legal sentencing facts and those discretionary sentencing facts which against defendants; the defendants bears the burdens on those discretionary sentencing facts which favors himself; Victims bear burden of proof over the issues different from that proposed by prosecutors; judges do not bear any burden of proof.Part 3 works on standards in sentencing course by considering results of applying sentencing facts and differences between the two parties in abilities to investigate. This article proposes it is reasonable to apply preponderance of proof over the sentencing facts favor defendants, which is justified by both theory and practice, on the premise that judicial interpretation has made it clear can sentencing facts against defendants be established only when there is reliable and sufficient evidence. Besides, facts without dispute shall be applied relevant standards depend on its nature of against or favoring the defendants.